Morgan v. Davis.

obtain the defendant's pension, engaged in prosecuting other soldiers' claims for pensions and bounties against the government, which employment constituted him a claim agent, within the meaning of the law; and his relation in this respect is not changed by his employing another man to enter his name as attorney of record at the Pension Department. U. S. Sts. 1862, p. 568, §§ 6, 7; Sts. 1864, p. 389, §§ 12, 13; Sts. 1866, p. 56, § 2; Sts. 1870, pp. 157, 185, §§ 7, 8; Sts. 1873, pp. 208, 209, §§ 31, 32.

The defendant was entitled to recover under his plea in offset, all the monies he had advanced to the plaintiff over and above the statute price allowed for establishing a pension claim; and was entitled to a charge in compliance with his special requests, as they were in accordance with the acts of Congress relating to pensions. It was error in the court to charge that the plaintiff could recover if the jury found the contract as he claimed, as said contract was in direct violation of law. The court also erred in charging the jury that the plaintiff could recover reasonable compensation for his services if they did not find the contracts proved, as it was not claimed on trial that the plaintiff could recover, unless it was by reason of the special contract, as no evidence was offered as to the amount of time or labor spent by the plaintiff, in what would be a reasonable compensation for procuring a pension. A person who seeks to recover by reason of a breach of a special contract, so long as he professes to proceed under the contract, is not entitled to recover on a quantum meruit, if he fails to establish his claim. Way v. Wakefield, 7 Vt. 223; Myrick v. Slason et als. 19 Vt. 121; Camp v. Barker et al. 21 Vt. 469; Sherman v. Champlain Transportation Co. 31 Vt. 162; Kent et al. v. Bowker, 38 Vt. 148; Davis v. Street, 12 E. C. L. 23.

J. J. Wilson, for the plaintiff.

The contract declared upon is not contrary to the provisions of the pension act The compensation of $10 allowed by the act is for making the application and other necessary papers. The act does not preclude the applicant from employing his agent, or any one else, to advance necessary funds, look up and ascertain the

Morgan Davis.

whereabouts of necessary witnesses, and procure their attendance. This is usually done by the applicant, but the law does not preclude his employing his agent to do the same. It is alleged in the declaration that the plaintiff was not a pension agent, and it nowhere appears that he was. But the jury have found that there was no contract between the parties as to the plaintiff's compensation. The court charged if they so found, the plaintiff was entitled to reasonable compensation. The jury have found $120 to be reasonable compensation. The charge, that if there was no contract, the plaintiff would be entitled to reasonable compensation, is unexceptionable, and it appearing by the verdict that the jury decided the case upon that ground, the judgment will not be reversed. Fitch v. Peckham, 16 Vt. 150.

The opinion of the court was delivered by

WHEELER, J. From the evidence, the charge of the court, and the verdict, it is apparent that the jury did not find that these services were performed and expenditures made under either special contract. Hence the plaintiff's recovery does not appear to be upon a contract that the act of Congress provides for punishing the making of. Act of July 8, 1870, No. 141, § 8. He appears to have claimed to recover upon such a contract. But, although he might not be allowed to maintain an action upon a contract the making of which is made punishable, and which is not otherwise prohibited, still, the claiming to recover upon such a contract would not prevent recovering in the same action upon other grounds that are not contrary to any law. He appears to have recovered what the jury found to be a reasonable compensation for his services and expenses rendered at the request and for the benefit of the defendant without any contract as to what the compensation should be, except what the law would imply and allow. At common law, a reasonable compensation, such as the jury gave, would be implied, and the recovery would be correct. But these pensions are provided for by act of Congress, and not in any manner otherwise, and the compensation of persons assisting those entitled to pensions to obtain them, has at all times been the subject of regulation by law of Congress. This appears from the

Morgan v. Davis.

uumerous acts cited on the defendant's brief. The act of July 8, 1870, before mentioned, was in force at the time when the plaintiff undertook to, and when he did, perform these services and make these expenditures. That act, § 7, provided, "That the fee of agents and attorneys for the preparation and prosecution of a claim for pension," should "not exceed in any case the sum of twenty-five dollars." Section 8 provided for punishing any agent or attorney who should" directly or indirectly contract for, demand, receive, or retain any greater compensation for his services as such agent or attorney, in any claim for pension," than was provided for in the preceding section. These two sections, placed side by side in the same statute, one allowing a fee and the other providing punishment for going beyond the fee allowed, must have been enacted with reference to a fee for the same thing, although expressed in different ways. The expression, for the preparation and prosecution of a claim," in § 7, and that," for his services as such agent or attorney," in §8, were used to set forth the same idea. The idea is, the services of the agent or attorney about the preparation and prosecution of a claim for a pension, and it embraces the whole of such services. The intention of the seventh section was to limit the pay for such services to twenty-five dollars at the most, and of the eighth section to punish the taking of more. This plaintiff appears to have acted for and in behalf of the defendant about the preparation and prosecution of the claim of the defendant for a pension, and in that business he was the agent of the defendant, and came within the provisions of this act. He appears to have employed Loyd, the attorney at Washington, to aid him in the prosecution of the claim, and Loyd has received the twenty-five dollars allowed by law for the whole of that service. This money received by Loyd, paid all that the law allowed to be paid for services, and the plaintiff has no claim against the defendant left to him in that behalf.

These acts of Congress, however, apply to services of agents and attorneys, and not to expenditures made by them. The evidence tended to show that the plaintiff had made expenditures about the prosecution of this claim for the defendant. For all of such

Pinney v. Petty.

expenditures that he actually made about this prosecution of the claim that were reasonably proper and necessary to be made. he is entitled to recover. Upon the trial he was permitted to recover reasonable compensation for both services and expenditures, while by law he was entitled to recover for the expendi tures only. The amount of each cannot be ascertained from the record here, and a new trial is, therefore, necessary.

Judgment reversed, and cause remanded.

MARVIN PINNEY v. GEORGE A. PETTY.

Justice of the Peace.

Discontinuance.

uance.

Waiver of Discontin

If a justice of the peace continue a cause returnable before him, without the knowl edge or consent of the defendant, and without attending with the writ at the time and place of trial, it operates as a discontinuance of the suit. After such continuance, the defendant appeared on the continuance day, and objected that the suit was thereby discontinued; but the justice held otherwise, and adjudged that the plaintiff pay the defendant's costs of the return day, which he did, and thereupon a trial by jury was had, the jury disagreed, and the cause again continued. At the second continuance day, another trial by jury was had, verdict for the defendant, and appeal by the plaintiff. Held, that the defendant had not waived his right to object that such continuance operated as a discontinuance, nor voluntarily submitted to the jurisdiction of the justice.

CASE. The writ was returnable before a justice on December 5th, 1871, when the case was continued to the 8th of January, 1872, without the knowledge or consent of the defendant, and without the justice being present with the writ at the place appointed for trial. On the 8th of January the parties appeared. and the defendant "objected to going to trial, because he was not notified of the continuance"; but the justice adjudged that the plaintiff pay the defendant's costs of travel and attendance on December 5th, and that the trial proceed; whereupon a trial by jury was had, the jury disagreed, and the case continued to the 27th of said January, when another trial by jury was had, ver

Pinney v. Petty.

dict for the defendant, and appeal by the plaintiff. In the county court, the defendant moved to dismiss the case, because the justice continued the same from December 5th to January 8th as aforesaid, claiming that thereby the case was discontinued.

The court, at the May term, 1873, BARRETT, J., presiding, dismissed the case, pro forma; to which the plaintiff excepted.

S. Fullam, for the plaintiff.

The plaintiff insists that by taking the terms imposed by the justice, and taking two jury trials, the defendant waived all irregularities, if any existed, and made the proceedings good.

Walker & Goddard, for the defendant.

The pretended continuance from the 5th of December to the 8th of January, was contrary to the statute and void. Gen. Sts. ch. 31, §§ 37, 38, 39, 40, 42. This pretended continuance was an irregularity which absolved the defendant from all obligation to further appear in the case; and all further proceedings were void or voidable, unless the defendant choose to waive such irregularity and proceed with the cause. Bryant v. Pember, 43 Vt. 599. The case shows that the defendant never waived or abandoned his objections to the irregularity of the pretended continuance. The defendant appeared with counsel on the eighth of January, and objected to further proceedings, for the special reason that the continuance was irregular and contrary to law; but this objection was overruled, and he was forced by the justice, either to take a trial, or run the risk of some other and higher tribunal setting aside any judgment the plaintiff might have obtained, had he withdrawn from the court after the justice decided that the case must proceed. The defendant was not obliged to take this risk after having seasonably objected to the irregular, unlawful proceedings. After having thus objected, he might defend upon the merits without waiving any of his legal rights. The plaintiff having appealed to the county court, the defendant had the same right to interpose any legal defense whatsoever to the plaintiff's cause of action. Brown v. Stacy, 9 Vt.